LeBrun: Tax cap denies a 'sound, basic' education system

Updated 7:56 pm, Sunday, February 24, 2013

New York state Gov. Andrew Cuomo. (John Carl D'Annibale / Times Union)

New York state Gov. Andrew Cuomo. (John Carl D'Annibale / Times Union)

Photo: John Carl D'Annibale

LeBrun: Tax cap denies a 'sound, basic' education system

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A cornerstone of the Cuomo administration's self-declared tower of accomplishments was marked for demolition last week. It can't be blown up high enough or fast enough.

The governor's beloved 2 percent tax cap was challenged in a lawsuit filed by the New York State United Teachers union in state Supreme Court in Albany. The suit offers multiple arguments why the tax cap is unconstitutional, asserting that it locks in unequal funding between have- and have-not school districts across the state, ''while pushing many school districts to the brink of educational and financial insolvency,'' in the words of NYSUT President Dick Iannuzzi.

The assertion is that the tax cap denies a ''sound, basic'' education, as guaranteed by the state constitution, to a significant and growing number. And that's correct.

It is irrefutable that the effect of the incomplete tax cap passed in June 2011, while politically popular and a contributor to the governor's high standing, has been disastrous for school districts and local governments. School districts have two sources of revenue: state aid and local taxes. The share of school budgets that is state aid has declined nearly 10 percent over the last decade, and the tax cap makes it far more difficult, especially in poorer districts, for localities to make up the difference from property tax levies. One of the arguments in the lawsuit is that because 60 percent of voters are needed to override the tax cap in a local school budget election, 41 percent of the voters saying no have more power than 59 percent who want to spend more. That totally distorts local control.

Sadly, we are watching a catastrophe unfold that will deeply affect many of our children at their most vulnerable ages, and which will have consequences for the rest of their lives.

The State Education Department has warned that between 100 and 200 school districts will be insolvent within two years.

That's up to a quarter of the state's school districts, with more predicted to follow. That means those schools won't be able to meet their obligations and will very likely be broken as teaching institutions as well. The multi-year highway to insolvency for many of them will be already littered with discarded teachers and administrators, dropped programs and advanced placement courses required for college admission, and cuts, cuts and more cuts impacting the core teaching mission.

Seared in memory is Cuomo holding court early in his tenure as the self-proclaimed education savior, telling us he was assuming the role of chief advocate for school children out of necessity. That was at the time he was also busy vilifying teachers, administrators and the ''education bureaucracy.''

The inconvenient truth for the governor is that if he lived in the real world, he'd be hauled into court for child neglect on a colossal scale for what he's allowed to happen to this state's once-proud public education system.

What the Legislature passed in 2011 was a mutation of a tax cap, because it failed to incorporate two critical components that made the Massachusetts model next door successful. First, it did not offer any significant mandate relief to localities to keep spiraling dictated-from-above costs in line. That still hasn't happened. And secondly, the state has not stepped in with infusions of direct aid to compensate for what localities can no longer raise.

Granted, New York remains in a deep, prolonged recession, so the direct aid is tougher to come by. But that also reflects this governor's priorities. He's been able to close historic budget gaps. Those gaps no longer exist. A similar effort could be made to adequately fund school districts if the governor so chose.

And that gets us to the main relief from the NYSUT suit — if it's successful. First off, just because the cause and effect of the tax cap creating a catastrophe in school funding is plain for all to see, that does not mean the NYSUT suit will necessarily prevail. The legal argument is over constitutionality, whether ''a sound basic education'' is at risk for the have-nots specifically because of the tax cap.

Realistically, though, if NYSUT wins and the law is tossed, or some part of it is, public schools in the state will remain on life support with or without a tax cap. It's gotten that bad. The NYSUT suit is really an act of desperation. The only short-term rescue is direct school aid enrichment, no matter what other arguments are raised about the benefits of consolidations, for example. Consolidations are part of a long-term fix. Schools have cut and cut way beyond what they should have already, goaded by a bullying governor. Now they need money to survive from that same governor.

A failure to survive, constitutionally, is not an option.

Getting the governor back to the table and rethinking his wrong-headed approach for funding both local governments and school districts is really the best outcome. Plus, getting the Legislature to assume its long overdue responsibilities in addressing the fiscal shortfall in local aid for schools and local governments would be its twin. I am not optimistic.

Frankly, looming in the wings is a multibillion dollar train wreck for this state over the failure to provide adequate foundation school aid to poorer school districts whether the governor comes around or not, or whether the NYSUT suit succeeds or not. This may be a game changer.

On Thursday, a state Supreme Court justice in Manhattan blocked the governor from withholding $250 million in state aid from New York City because a teacher evaluation plan wasn't approved on the governor's time schedule. The judge stated students shouldn't suffer because the unions and city couldn't make it work in time, citing specifically the constitutionally protected right to a ''sound, basic education.''

The gorilla and its progeny in the wings include the still unpaid debt owed the city of New York for a settlement worked out between the courts, the successful Campaign for Fiscal Equity lawsuit brought on behalf of underfunded city schools, and the state. Eliot Spitzer signed off on it. The city is still owed $5 billion, and someday a collection agent will come calling. I have a feeling that agent will be wearing a judicial robe.

In addition, last June the state Court of Appeals in a 6 to 1 vote allowed the small cities lawsuit citing the same inequities in state funding legal argument to go forward against the state. The language in that decision made it pretty clear that the highest court finds the argument for unequal distribution of school aid compelling.

In effect, the state has been given its warning by the courts on where this is going. And the high court, while reluctant, has not hesitated when pushed to redefine what an evolving definition of ''a sound, basic education'' means in 2013. And how much it costs.